mmm 



^73 





(lass E '^^1 1 ^ 



SPEECH 



v" or 




w 
OF DELAWARE, 

On the following amendment proposed bjMr. Taylor, of N. Y. to tlie 
Bill authorisiag the people of Missouri to form a Constitution : 

Section four, line twenty -five, after the Mord "States," insert the 
following: " And shall ci-daiu and establish, that there ihall be nei- 
ther slavery nor involuntary servitude in the said state, otherwise 
than in the punishment of crimes whereof the party shall have been 
duly convicted : Provided ahvays, That any person escaping into the 
same, li'ora wjjom labor or service is lawfully claimed in any other 
state, such fugitive may be lawfully reclaimed, and conveyed to the 
person claimitig his or her labor or service, as aforesaid ; And pro. 
'Tiided, a(s9. That the said provision shall not be construed to alter 
the condition or civil rights of any person now held to service or la- 
bor in the said territory." 

DELITERXI) IX TllZ HOrsi; OF HEPnESKXTATTTES OF THE VSITZD 
6rAX£S, FEBIIUART 7, 1S20. 



Mr. Chairman: If it were rot for the peculiar 
situation in which I shall be placed, in regard to sdYne 
respectable opinions prevailing in the state from which 
I have the honor to c^me, by the vote I shall feel it 
my dutv to give upon the present occasion, I should 
not trespass upon the time of the committee. If the 
eloquence and ability which have been already em- 
ployed in this det) te have not produced any change of 
opinion, I have not the presumption to suppose that it 
will be in my power to vary the result; but, if it is 
not for me to disiurb the opinions of others, I may af- 
ford a just-fication of my own, and furnish to those 
who may hereafter feel any interest in the course I 
deem it my duty to pursue, an exposition of the mo- 
tives by which I am f5;overned. 

I concur with the honorable mover of the amend- 
ment, that it presents an act of no ordinary legisla- 
tion; and I am very sure he cannot easily overrate its 
importance---an importance derived; not mere from 



^3 7? 

the intrinsic magnitude of the question, in all its rela- 
tions, th-^n the excilement and tumult to which it has 
given rise in every part of the republic. I do not be- 
lieve that any subject has ever arisen in this country, 
since the formation of the government, which has 
produced a more general wgiiation, or in regard 
to which greater pains have been taken to inflame 
the public mind, and control the deliberations of the 
national councils. The dazzling reward of popular 
favour, invested with all its fascinations, has been 
held up on the one hand, and the appalling spectre of 
public denunciation, with all its frightfulness, on the 
other. The sincere and humane, actuated. I am 
sure, by the best and purest motives; the aspiring de- 
magogue rfnd ambitious politician; those who wish well 
to their country; and those who seek power on the 
troubled sea of popular commotion; have promiscu- 
ously united in these public agitations, until the press 
has teemed, and our tables groaned, with a mass of 
pamphlets and memorials beyond example. 

Tihe state which I have the honor, in part, to repre- 
sent, has been the theatre of a full share of this agita- 
tion; and the honorable legislature of thai respectable 
state has been pleased recently, to take up the subject, 
and have unanimously resolved that, in their opinion, 
Congress have the cor stitutiond power, and ought, to 
impose this restriction upon the new states 

Entertaining the respect I do for the intelligence of 
the people of my own state, and the character cf their 
legis^'ature, I cannot find my opinion in opposition to 
theirs without the most unfrigned regret. For, al- 
though I do not ' oncede to the legislature of a state 
the right of instructing the representatives of the peo- 
ple in Congress, or of employing its official ch- racter 
to influence their conduct, or to affect their responsi- 
bility, yet, viewing their acts, in ihib respect, as the 
opinions of the individual members merely, I cannot 
regard them with mdifterence, selected, as they un- 
doubtedly should be, from their fellow citizens, as dis- 
tinguished for some perlion both cf virtue and intelli- 
gence. 

I am free to admit that, in subjects of general policy 
merely, the will of the people, when fully and fairly 



ascertained, is always entitled to great weight; and, 
upon an occasion like the present, if I were influenc- 
ed by motives of expediency only, I should be much 
disposed to yield my impressions to that will. But, 
in constitutional questions, the representative is, or 
ought to be, governed by higher considerations; and 
he would be unworthy of his trust who could be re-i 
gardless of them. He is sworn to support the consti-l 
tution, and he takes his seat in this house, to lep:islat( 
for the nation, undtr the provisions of that nsttumentJ 
His own iniegrity, and the saiety of our common inj 
stitutions, depend upon his strict personal accounta^ 
bility: his own opinions, formed by the best lights (>£ 
his own impartial judgment, must be his guide, and 
he cannot adopt those cf others, when conflicting with 
his own, without a surrender of his conscience. In 
such cases, popular feeling &nd legislative recommen- 
dation can have no greater influence than to weaken 
one*s confidence in his own impressions, and to dic- 
tate a re-investigation of the subject, to see if con- 
clusions may not h-'ve been drawn from false premises, 
or views overlook'. d, which, if they hid been advert- 
ed to, would have led to a different result. I have al- 
lowed the recommendation of the legislature of Dela- 
ware to have such an effect in this instance. I 
have deliberately reviewed and reconsidered this im- 
portant subject, divested, I am sure, of any im.proper 
feeling, and prompted by every allurement of popular 
favor; to re ch a conclusion in conformity with their 
views; but, I am bound to say, ivfter this re-h»vestiga- 
tion, pursued with great labor, tnd a full sense of my 
responsibility, 'hat I believe, in my cnnsnier-ce, that 
Congress does not possess the power to impose the 
contemphued restriction. In this belief, then, Mr. 
Chairman, artd resting upon the principles of the con- 
stitution, and my duty to a powe. hi^rher than any le- 
gislatu e, I must regret the difference of opi< ion, and 
be contentvd with an uprif;ht discharge of my public 
trust. I will t^ke leave to sjy,sir. in the language of an 
illustrious man on another occasion, who I could desire 
to imitate in m ny other respects, "I honor the people 
and rt'spectthe lef^islature; but here are many things 
iii the favor of either, which are objects, in my account^j 



4 



not worth'ambition. I wish popularity, but it is that 
pepularity which follows^ not that which is run after. 
It is that popularity which, sooner or later, ne>er fails 
to do jastice to the pursuit of nobie ends, by noble 
means. ) shall not, therefore, on this occasion, do 
what my conscier.ce tells me is wrong, to court the 
applause of thoiis:aidSf nor shall I avoid doing what 
I deem to be right, to avert the artillery of the press.'* 

I shall not, in this place, sir, imitate the exaiople of 
other geni-iemen, by making professions of my love of 
liberty, nnd aohorrerce of slavery; not because I do 
not entertain them, but because I consider that the 
great principles of neither are involved in this amend- 
ment. It is '^ coloring, to be sure, of which the sub- 
ject is susceptible, and which has been used in great 
profusion, but i^ serves much more to inflame feelings 
and prejudices unfriendly to a dispassionate delibera- 
tion, than to aid the free exercise of an unbiassed 
judgment. 

This amendment does not propose, nor has it for 
its object, to inhibit the introduction of slavery from 
parts beyond the United States : in such a scheme 
there is no intelligent man in the Union who would 
net coTcUally concur. Neither dots it propose to pro- 
mote the emancipation of the slaves now in the coun- 
try; this is admitted to be impracticable; the uildness 
of enthusiasm itself acknowledges its incompetency 
for such an undertaking. The truth is, sir, that this 
species of unhappy beings are now among us; brought 
here, in part, by events beyond our control, and, in 
part, under the authority of our own consiitulion; and 
it behoves us, by a wise end prudent administration of 
our powers, to meliorate their conditior, and accom- 
modate the evil, as far as it may be practicable, to the 
peace and happiness of our white population, and the 
stability of our institutions. It is not pretended, even, 
that the condition of the unhappy slave himself would 
be improved by the success of this amendment: on 
the contrary, it has been insinuated, as boldly as the 
sentiment would justify, that his confinement to a 
narrower compass might lead to his extirpation, by 
the gradual, but sure, process of harder labor, and 
scarcity of subsistence, I am free to say, that the 



condition of the slave himself would be meliorated by 
his dispersion; nor do I attach the same importance, 
as some gentlemen appear to do, to ihe danger of en- 
couragiojr an illicit importation from abroad by permit- 
ting a market west of the Mississippi. It is an argu- 
ment founded on the futility of legal restraint, the 
worst possible species of argument by which a legis- 
lature could be influenced It would pro^ the in- 
utility of every act of legislation, or might we used to 
justify every species of usurpation. It woiJd equally 
demonstrate the futility of the propo^^ed amendment 
itself; for, if gentltmen cannot hope to exterminate 
the foreign slave trade, by all the precui/ ions legiti- 
mately in their power, founded in an uranimityof le- 
gislation, strengthened by the powerful force of public 
sentiment, and the abominable nature of the traffic 
itself, what greater reliance can thty pi. ce U;'on this 
restrictio , foisted into the constitution of a free peo- 
ple agaiest their consej t, n which ace unt, alone, it 
would be -an object of hatred and Cfjnte f pt, and the 
violation be winked at by a great portion of the people, 
if not by their public aufh rities. 

Sir, this amendment does not even propose to pre- 
vent the introduction of slavery into Missouri for the 
first time; it has already taken root there; we found it 
there when we acquired the territ ry and it has grown 
and extended under the sanction of our own laws; 
but the whole force and effect of the amendment is, 
to take from the people of Missouri the right to de- 
cide, for themselves, whether they will permit persons 
removing thither, from other states in which slavery 
is toleiated, to takr their slaves with them. '1 his -^^b- 
ject wf)uH not be undesirable, if it could be accom- 
plished by the legitimate powers of Con^rebs; but we 
hiive no rigl'.t to do it by an assumption of power in 
ourselves, or by an unauthorized use of the power of 
others 

Mr, ChaiTnan, the great question involved in this 
amendment, is neither more nor less than this: Whe- 
ther Congress can interfere with the peopla of Mis- 
souri m the formation of their constitution, to compel 
them to introduce into it any provision, touching their 
municipal ri^^ hts, against their consent, and to give up 
1* 



6 

their right to change it, whatever may be their future 
condition, or that of their posterity? Every thing be- 
yond this is merely the imposing garb in which the 
power comes recommended to us. It is certainly true, 
that an attempt to take from this people the right of 
deciding whether they will, or will not, tolt;rate sla- 
very among them, is less objecticnabk because of its 
end, than it would be if it interfered with some other 
local relation, or right of property; but the power to 
do this, implies a power of much greater expansion. 
Congress has no greater power over slavery, or the 
rights of the owner, in any particular state, than it has 
over any other local relation, or domestic rit/ht; and, 
Ihereforel a power to interfere with one, must be de- 
rived from a power to interfere with all. Sir, it is 
manifest, from the avowal of the honorable mover, 
that he cont^^nplates a wider scope of power, and the 
attainment oHmportant ends, other than those which 
lie upon the surface of this amendment. The getitle- 
man seemed not to limit his view to the municipal ef- 
fect of this power; in his eye it was to have an indi- 
rect operation upon the federal powers of the general 
government; since his chief cbjectien appeared to be 
to the enumeration of slaves in the ratio of congres- 
sional representation. Sir, I think it will be in my 
power so shew, that the gentleman's ftars, on this 
score, are groundless; but they serve to prove, never- 
theless, that thii is neither, wholly, a question of sla- 
very, nor a power limited to this single object, but 
that it is only one, selected from an inimense mass of 
power, authorizing Congress to control the rights of a 
free people, in the formation of their state constitu- 
tion; and, in this way, to enlarcfe the operation, it not 
the nature, of the political power of the general go- 
vernment. 

Having thus attempted to place the real question 
before the committee upon what I conceive to be its 
true grounds, I beg leave to invite their attention to a 
closer examination of this s ibject. 

By the constitution of the United States, it is pro- 
vided, that "new states may be admitted, by the Con- 
gress, imo this Union." This is a power to ^'•admit** 
a **state"--.it is no power to fornix or create, a state; 



•it pre supposes the right to form a state to reside 
tlsewbtre, and. as I shall atteinpi to shew more par- 
ticularly hereafter, that right resides in the people, and 
this clause invests Congress wiih no power to ir.ter- 
fere with the exercise of it. It is also a power to 
*<admii" a ^^state" — it is not to adnait a territory, or 
any thing less than a state; and it is a power to "ada-it" 
a "state into this Union. ^* This Union, as I shall pre- 
sently shew, is nothing more than a compact between 
the siares wh^ connpo^e it, and the general govern- 
ment; and, if any member of it is admitted upon the 
principles of a different corr pact, or "with fewer or 
greater privileges, the Union, m that respect, would 
be changed. 

Such a linnitation is no disparagement upon the 
powers of C^ongr sa; and, in ordinary cases, would 
be suHicient for every useful purpose. The power, 
in itself, is, ordinarily, discretionary, and, in the txer- 
cise of this discretion, where it existed, the power 
would be crampe'ent to attain all ends consistent with 
the principles of a republican govtrnment. In every 
case where the discreuon existed, the people cf mpos- 
ing the state or community applying for admission, 
would form their consiitution according to their own 
views of their welfare - nd happiness, present it for 
the acceptance of Congress, avid solicit adiiission; the 
power t-' be exercised by Congress, in such a case, 
would be to *'admit" or reject; in the exercise of 
this discretion, it would be their duty to consider the 
natur-- of the consMiution, its iifluence upon the ha- 
bits and character of the people who were to be go- 
verned by it, and, also, its conformity with the spirit 
and principles of the people of theUoited States, as well 
as the tfifect of anew st<:te upon the interests and con- 
ditions of the Umon, generally. If, after thisdthbe- 
ration, Congress should be willing to exercise their 
power to "admit" they would, of course do so; but 
th^y would admit a '*state" governed by a constitution 
formed by the people, for their own gov^inment, in 
whom, alone, the power to form v. resides; and the 
state so admitted, w< uld take her station with the 
others composing the Union, ard then, a- d not soor er, 
the powers of the general governnaeot would operate 



8 

Upon her in common with all the others. If, on the 
other hand, Congress should refuse to "admit," the 
people would remahi in th ir former condition; if it 
were a state independent of the Union, it would con- 
tinue in its government; if a ftrriiory, belonging to the 
United States, it would remain undrjra territorial form 
of government, until, by a re modification of their con- 
stitution, or the views of different councils, they could 
obtain the assent of Congress to their admission into 
the Union. But I contend that, in such case, what- 
ever may have been tiie provisions of the constitution 
of such people at the time of their admission into the 
Union, they would have the right, under the princi- 
ples of our goverwment, tn chanyre it, if their happi- 
ness and the condition of their internal affairs should 
at any time render it necessary. 

If in this inst nee, Mr. Chairman, the ordinary 
discretion of Congress existed, I should be disposed 
to exercise it, and refuse to dmit the state, ur.til the 
constitution was formed according to n^y views of the 
great interests of this Union; though I am free to 
admit, that much is due to the principles of our renub- 
lican policy for extending the blessings of seif govern- 
ment to all its people, as soon as their numbers will ad- 
mit of it, and of holding as few of our people as pos- 
sible in a st te of colonial dependence. But, sir, I 
contend that, in regard to the people of Missout i, our 
discretion has been surrender d by the legitimate au- 
thority of the government, and by Congress itself, and 
that we are n it n >w free to exercise it. 

The people of Missouri come here with the treaty of 
1803 in their hands; they demand admission int-i the U- 
nion as a matter of right- rhpydo not solicit it as a favor. 
If their cotistitution is republican, and consistent with 
the provisions of that under which we aie actin.^,we have 
no alternative, unless it is to refuse to execute our own 
contract — to violate the plighted faith of the nation. 
No one will undertake at this day, to d.ny, that the 
United States had the right tj acquire the Territory 
of Louisian i. They had tise right also t . acquire it by 
contract; the right of acquirint^ includes the right 
of governing ii; and, in contracting lor its acquisition » 
it was competent to stipulate the terras and the princi- 



pies by which the right ci gcverr.inp: it should be ex- 
ercised. If the United States were competent to make 
the treaty, the treaty was competent to take away the 
discretion of Congress, for it is declartd to be the 
"supreme law of the land." 

It must also be conceded, that the power to admit 
new states, is one of the powers of the gener^al govern- 
ment^ and I shall not deny that, in its ordinary exer- 
cise, it belongs to Congress; but, beirga power in the 
general government, given up by the states, its exer- 
cise may be regulated and controlled by the treaty- 
making power; which is the extraordinary and su- 
preme power of the same government. The powers 
of the general government are executive, legislative> 
and judicial; and are, ordinarily, exercised by the re- 
spective departments on which they n&turally devolve: 
they may or may not be exerted, as circumstances 
make it proper. Bui the treaty-making power is the 
extraordinary power, which may stipulate with regard 
to the exercise of any of them, and its stipulations are 
binding; because they render the exercise of the 
power necessary. No tieaty can be unconstitutional 
which stipulates for the performance of any matter 
which it is within the power cf the general govern- 
ment to perform; a distirxticn to which the honor- 
able gentleman from Penns; Ivania, Mr. Hemphill, did 
not advert, when he fourd it necessary to elude the ob- 
ligations of the treaty of 1803, by pronouncing it un- 
constitutional. A treaty is only unconstitutional, when 
it stipulates for the exercise cf powers, or the sur- 
render of rights, which never have bttn given to the 
general government, but belong to the states and the 
people. This is the exposition which has ever been 
given to the treaty-making power, since the famous 
British treaty. It would be difficult to imagir e a 
treaty that did not contain some stipulations ii? regard 
to the powers either of the executive or Lgislativc 
departments of the government. The power to regu- 
late commerce, with foreign nations, o appropriate 
money, and to raise armies, belong to Congrt^s. But 
the treaty-making pov\er may make stipMlations in re- 
gard to either, and for the exercise of either, and the 
Congress and the nation would be bound by them= 



10 

* 

The interference of Congress miglit, in some instan- 
ces, be wec-ssary to carry the stipulations into eiTect; 
and it would be their duty in good faith to yield it. 
If they refused, the national faith would be vio- 
lated, but the treaty would not be void. In the 
very instance of the Louisiana treaty, it was stipulated, 

aipong other things, to pay as the price of the 

cession. This amounted to a stipulation that Congress 
sliould appropriate that sum of money. Congress 
cat^not have, and ought not to have, a more ur limited 
discretion, in the exercise of any po'.ver. than in that 
ofupproprijting money; yet the treaty stipulated, that 
they should exercise the power, and the Congress did 
exercise it; could not the treaty then stipulate that they 
shouW admit a state into the Union, and if it do so, are 
not Congress equally bound to execute it? Shall it be 
said, that their discretion is gone in the one case, but 
exists in the other? Then, sir, has the treaty of 1803 
stipulated that Congress shall exercise their power to 
admit this state, and have Congress sanctioned the 
stipulation? 

The third article contains this provision: " The 
inhabitants oi {h*d ceded territory shall be incorporated 
in the union of the Unitpd States, and admitted as 
soon as possible, according to the principles of the 
Federal Constitution, to the enjoyment i>f all the rights^ 
advantages nd immunities of citize .s of the United 
States; nd in the meantime shall be maintained ^nd 
protected \n ihe free enjoyment of tht'a liberty, pro- 
perty and the religion which they profess." 

It must be conceded thn this .article was designed 
to have some meaning. c=nd to secure to the inhab- 
itants some rights n(\ advantages, to which thev could 
hiive no clai>n without it It will not do, in the in- 
terpret tion of ;.n importa it instrument of this des- 
cription, to say that the only article which applies to 
theinhaSitants whose rij^hts would be affected bv the 
tr.aisfer, is a mere matter of form without subsiance 
or desigjn. Its fjwn language clearly imports its in- 
tention, to conftv *^ rights, advantages^ and immuni- 
ties'''' of \ political character, and such as they could 
not have claimed as a matter of ri^ht, without this 
stipulation. What would have been the condition of 



u 

these inhabitants in relation to the government of the 
United States, if the tre-ty h d not contained this 
provision? Sir, the power of the general government 
over them .^nd the territory, would have been su- 
preme: it could have kept i hem in t? state of perpetu- 
al colonial dependence; placed over them any form of 
government whate*er, asid, if it pleust^d, ha»e sold 
them agai;. to any foreign power. It •• ould na\e been 
completely discretionary to h.ive** i;icoi';;orflfed'* them 
into the Union or not, as it pleased and to give ihem 
such rights as it thought proper, and wh n it pleased. 
Now these dre the very p'lwtrs this treaty meant to 
tie up; and when we consider the objections which the 
language -nd forei ..n habits of these inhabitants might 
have interposed to their incorporation into the Union, 
and that the United States were barg. ining more for 
the free naviga ion of the Mississippi river, than an ac- 
cession of territory 01' prpulation; it became an im- 
perious duty on the French government to stipr.late, 
that if the United States obtained their object, they 
should be compelled to extftnd the rights and advan- 
tages of free government to the inhabitants. 

They are to be incorporated into the Union of the 
United States, aud are to be* admitted as soon as pos- 
sible to the enjoyment of the rights, r^dvantages, and 
immunities, &c. nnd, ' in the meantime, they are to be 
protected in the free enjo ment of their property.** 
This latter claim, shews that their incorporation into 
the Union, me.mt more than a territorial form of go- 
vernment; they were to be under such a government 
until they cculd be iricorporated into the Union, and, 
during that time, their property was not to be disturb- 
ed It WHS only under thfit form of government that 
the United States could interfere with these rights; 
their power would cease when it became possible to 
incorporate them into the Union, and admit them to 
the enjoyment of all the '* rii^hts, i dvjrtfges, and im- 
munities (»f citizens of the United States;'* in virtue of 
which, they would, themselves, be authorized to regu- 
late their own property. 

Now, Mr. Chdirm.an, he people of Missouri cannot 
be incorporated into the Union, but, as the people of 
a ^^state^'* exercising state government. It is a union of 



12 



sfaies, not of psople^ much less o^erritories. A ter- 
riforia^ government ^can form no integral pait of a 
union of state governments. Neither can the people 
cfa territory enjoy ^ny federal eights, until ihey h.ive 
formed estate k;o*'ernaient, and obtained admission in- 
to the Union. The most important o£ ihe federal ad- 
%'3magcs and immuriities, consist in the right of being 
represented in Cons-ress, as well in the Senate as in 
this House, the right of pariicipaiing in the councils 
bv which they are governed. These are emphatically 
the " rights^ advantagesy and immunities of citizens 
of the Uaited States. The inhabitant of a territory 
merely, has no such rights — he is not a citizen of the 
United States. He is in a state of disabihty, as it re- 
spects his political or civil rights. Can it be called a 
^h'ightf" to acquire and hold property,and have no voice 
by which its dispo ;ition is to be reguldtedT Can it be 
called an ndvantage or immunity of a citizen of the 
United States to be subjected to a government in whose 
deliberations he has no share or ager.cy, beyond the 
mere arbitrary pleasure of the governor? To be ruled 
by a power irresponsible, to him at least, for its con- 
dtictl Sir. the rights, advantages, and immunities of 
citizens of the United St.tes, and which are their 
proudestbo :St, are the rights of self-government, first, 
in their state constitutions, and, secondly, in the go- 
vernment of the Union, in which they have an equal 
participation. 

It is said, however, by the honorable gentleman from 
Pennsylvania, (Mr. Hemphill) that they are to be ad- 
mitted' according to the principles of the federal con- 
stitution, a.idthat, as by those principles, it is discre- 
tionary in Congress to admit or not, we are at liberty 
to act or not. Surely, sir, this argument resembles 
too nearly a play upon words, to be received by a 
grave legislative body, prof^rssmg to execute, in good 
faith, tiie spirit of a ireuy. Such a construction 
wou-d render the treaty a mere nullity. It is plainly 
to say, to the people of Missouri, that though we can- 
not denv that the treaty has stipulated that you shall be 
admitted, yet that we shall take the liberty of exe- 
cuting the contract or not, as we please. There is, 
first, a definite and distinct stipulation," that the m^ 



13 

habitants shall be incorporated m the Union of the 
United States; ai'dthen follows tlie subsequent clause 
of the article, clearly explanatory of the nature of the 
*' i'lcorpor'aion," to wit: **and admitted as soon aspoS' 
sibky accordi! g to the principles of tht federal con- 
stitution, to the enjoymer t of all the rights, advanta- 
ges, and imrnunides of citizens of the United States.*' 
In chis is included as positive an enp-agcment, that 
Congress shall exercise their power to admit these 
Inhabitants into the Union, p.s there is in the other ar- 
ticles of the treuty,that Corgr.-ss ^ihall pass the neces- 
sary laws for carrying their respective provisions in- 
to effect. The words '* accordi:.g to the principles of 
the federal constitution,*' obviously apply to the extent 
of the population, or the obhgatior.s incurred in vir- 
tue of tue admission. This is most manifest from the 
provision, that they shall be ad mi' ted " as soon as pos- 
sible," accordmgto the principles of the federal con- 
stitution. If it had been designed to Kave the mat- 
ter discretionary, it would hnv-. bee' useless to pro- 
vide for thei- admission *' as soon as pvF'ilble.-' If the 
provision had been, that they should be admitted as 
soan as their numbers : hall a.i.ount to 40,000, there 
would hv^vebeenno doubt; the actual provision is not 
less explicit It makes it obhgatory upon Congress 
to admit them as soon as they have the power to ad- 
mit them under the constitution. They have this 
power as soon as the popuh^tion is sufficiently nume- 
rous, according to the estabiishnd ratio of representa- 
tion, to entitle the state to oi'e representative. 

Si:, this clause is entirely in favor of the rights of 
the inh biti.nts, arni restrictive of the powers of (Con- 
gress. Its object was not merely to secure their in- 
corporation in the Union, m ich might have been 
liable to some embarrassment, but also to secure to 
them that incorp^'ration, and thc^ ree enjoyment of 
all the rights, advanlaues, and immunities of citizens 
of the United Stages, according to the principles of the 
federal constitution. 

Such, sir, I insist is the true exposition of this trea- 
ty, a treaty adopted by Congress, with a full kn':wledge 
of such exposition, which has been uniformly giv- 
cti to it by every act of the government, since its ra- 
2 



u 

tiQcation. As I deem the true import of the treaty 
of much importance in ihis argument, I must bej^ 
your permission to refer, with some parlicularity, to 
the acts of the government in this respect. 

One principal point of difference between the two 
great parties by which the people of this country were 
originally divided, was in regard to the force and effect 
of the treaty making power. Mr. Jefferson, who was 
at the he id of the administration when the treaty of 
1803 w-^s concluded, entertaining the opinion, that it 
was not binding upon Congress until it received 
their approbation, submitted it to them, and 
recommended the passing of the necessary laws to 
carry it into effect. The party at that day opposed 
to Mr. Jefferson's administration pronounced the trea- 
ty unconstitutional, because it stipulated to admit 
states into the union, carved out of a territory which 
formed no part of the old Thirteen States. They did 
not deny the force of a treaty containing engagements 
in regard to the powers of Congress, but ssid that 
no department oi ih^ general government had power 
to make new states out of new territory. Tke third 
article of the treaty of which I have been speaking, 
was the objectionable clause, and both parties con- 
curred in ascribing to it the same construction for 
which I now contend. On that occasion, Mr. Gris- 
wold, of Connecticut, and one of the liblest end most 
distinguished iit; tesmen of whom this country can 
boast, when speaking of the just inrerpretation of this 
third article, said, '* It is perhaps somewhat difficult 
to ascertain the precise effect which it was intended 
to give the words which have been used in this stipu- 
lation. It is however clear, tlf»4 it wis intended to 
incorporate the inhabitants of the ceded territory into 
the Union, by the treaty itself ^ or to pledge the faith 
of the nation, that such an incorpf>ration should take 
place within a reasonable time " The Hon. Mr. 
Tracy, of the Senate, upon the same occasion, and in 
reference to the same article, also expressed himself 
in the followinLj terms — " The obvious meaning of 
this article is, that the inhabitants of Louisiana are 
incorp rated by it into the Union upon the same foot- 
ing that the territorial governments are, and the ten i- 



15 

tory when the population is sujffidently numerous mnst' 
he admitted as a state, ivith every right of any other 
state.** Mr. Pickering went even farihtr and said, 
'' If, in respect to the Louisiana treaty, the United 
States fail to execute, and, within a reascn^ble time, 
the engagement in the third article, to incorporate the 
territory in the Union, the French government will 
have a right to declare the whole treaty void." I'his 
construciian v/as acq'jicsccd in by the opposite side, 
who contended that the power to admit new st'-tes was 
not confined to the old territory, and, that as the treaty 
was now submitted for the approbation of Congress, 
they had only to determine wh; ther it was expedient 
to adopt it with this provision. After the utmost de- 
liberation, and wiih a full understanding of the clear 
import of this third article, Congress determined to 
adopt the treaty. They accepted the territory, and 
passed the necessary laws for carrying it into full ef- 
fect. They made it their own act. They subsequently 
divided it into two territorial governments, and made 
no a'tempt to prevent the existence of slavery in ei- 
ther; they sold the land, and invited emigrants to go 
thither from other parts of the United States, und 
buy and settle, but did not prohibit them from 
carrying rheir sl-vves with them.— Thtty sold the land 
and put the money in the public treasury. As soon as 
the population of that part of the territory called, un- 
der the division, Louisiana, became sufficiently nu- 
merous. Congress admitted it into the. Union, as a 
state, upon the same footing with the origin il states': 
no a; terr>pt was uade to insist upon a res.riction simi" 
lar 1.0 the present, or to impose any other condition 
against their consent, which in any manner affected 
the rights of the people, in the exercise of their sove- 
reign pewer. The provisions to which Congress re- 
quired t e p ople of Louisiana then to submit, will be 
found, with one exception, to be such aswere prescri- 
bed by the constitution of the United States, and to 
whi' h they w uld have been subjected, though they 
had t!ot put them into their constitviition. Their enu- 
n)eraiion in the law was wholly a matter of caution. 
Or, that occasion, a5so. the people fo/!MU<ari/?/ ssented 
to the terms, and the right ©f Congress to impos*' 



16 

conditions, against their will, never was asserted. It 
was particul?rly so in that part of the law, which 
stipulated that the lands Fold by the United States 
should not be taxed for five years. It is, however, to 
be remarked, that this was not a destruction of the 
power in 'he people to tax the land, it was an agree' 
ment merely between the parties, to suspend it for a 
term of years but, the restriction now attempted to 
be imposed upon the people of Missouri, is a complet 
annihilation of their power and right for ever. In 
the case of Louisiana it was no part of their constitu- 
tion, it was a mereagreem.ent by separate contract, not 
to use a power admitted to be in them for a limited 
timej in the case of Missouri, it is an attempt to make 
a constitution, extinguishing a power, and making that 
constitution irrevocable! 

The Congress of the United States having thus giv- 
en a contemporaneous interpretation to this treaty, 
end their own oblige tions, have, by the most unequivo- 
cal and positive acts, encouraged the emigration of the 
citizens of the United States from the other states, who 
have gone thither in the expectation, and under the en- 
gagements of Congress, that the territory sh»«id be 
incorporated into the Union upon an equal footing 
with the original states, as soon as the population 
would justify it, and they stand therefore upon the same 
footing, and are entitled to the same rights, which be- 
longed to the inhabitants residing there, at the time of 
the ctssion. 

It appears to me, therefore, Mr. Chairman, to be 
established past controversy, that Congress are boun»i 
to admit the Missouri tenitory into the Union — and 
that we have no discretion to admit or reject. If we 
have no such discretion, how is it possible that we can 
require from th^ people any terms which are founded 
on this discretion? We can only enforce our terms by 
dtclining to admit the state, unless they are assented 
to; but, we have no power to refuse to admit, and 
therefore, we ha-e as little power to prescribe the 
terms of admission. 

I am willing to admit, however. Sir, that if there be 
any thing in the constitution of the United States 
which will authorize Congress to impost this restric- 



ir 

Hon upon the people of Missouri, independent of our 
power to reject the state, ilie treaty will not prevent 
its exercise. These people though th.y have, a right 
to be incorporated into the Union s a stale, as the 
people of a state, they are to be entitled to no greater 
privileges, or liable to greater obligaiions than the 
people of any oti;er stcte, under the Federal Consti- 
tution. 

What then are the principles of the Federal Consti- 
tution, and the powers conferred upon Congress in 
this respect ? 

Th'w fundamental principle of this and of every re- 
publican government, is, ihat the sovereign power re- 
sides, and is inherent in the people, and not if! \\i^ go- 
vernment. 'I he sovereign power is the right cf the peo- 
ple to unite together f jr objects of their mutual safety 
and advantap;e, and to establish a public authority to or- 
der and direci what is to be done by each, in rel -lion to 
the end of ihe association. Upon the pri^^^cipies of 
our go>ernmcnt, all ihf^ sovereignty is in the peopk — 
Ihey are the fountain \vh:fi.ce it ^11 flows, and the ge- 
neral govern'i'ent has no power than w1i-t the pe' pie 
h "^e delegated to it ior federal purposes. 1 hese are 
the rights asserted in the declaration cf independence.; 
they ar'- those for which our fathers contended with 
Great J3iitai , and, wherever m n isf urir^ he is found 
in ihe po-jsession of them. la the esiablishtn. nt of the 
public duthority, a greater or less portion of power 
may be deltgat^d by the people, by voluntary enj^age- 
ments; but, whatever may be the power deleg-ated the 
sovereignly is not i »,paired, sir.ceit was by th: ir will, 
and may be recalled or modified by the same will, when 
thv ends and objects of their association require it; 
all governments are instituted for the protection of 
this right in the people Befo'e the f 'riTiaticn of the 
Union, the pe pie of each "tate were sovereign and 
ind. pendent; ihev had exercised their sovereignty in 
the formation cf state Cf.nstituiions a^ d govern- 
ments; they not only refained all power not given to 
th se governments by their constitutions, butthty pos- 
sessed the right and po^-'er of altering and changing 
their constitutions at will In virtue cf this sovereign 
power, the people of the old stales consented to form ft 
2* 



Is 

compact of Union, for their mutual safety ani eqiality 
of rights, and they consented to vtst, in the government 
of the Union, certain powers, the better t guarantee 
to the people the enjoyment ot the remainder. The 
powers of the gancral government are ihertfore limit- 
ed, and all the power not delegated remt^ins with he, 
states, as far as their constiruticns give it, and with the 
people. In allother respects, the states and the peo- 
ple are as completely sovereign as they were btforo 
the union It will not be pretended that h^ people 
have ever surrendered their right to alter as.d change 
their state constitutioRs, and to make any provision 
not inconsistent with the constitution of the United 
States. It follows, then, from these principles, that a 
state is a body of men utiited together for their com- 
mon interest; the term imports sovereignty, and, in our 
Union, it imports that portion of sovereignty which has 
not been given to the general government, and which 
resid'is with the people. When we speak, the efore, 
of admitting a state into the Union, we can mean no- 
thing more, than the admission rf a ecmmunity of 
people in whom the sovereii-n powc r resides, into ano- 
ther community of states, by which they voluntaiily 
agree to refiain from the exercise of a certain por- 
tion of their power, whenever it is incompatible with 
the powers of the Union; in every other respect, their 
power remaiss as it did before their admission. The 
admission of a state cannot enlarge the powers of 
Ihe Union, though it may limit the •exeicist- of th© 
sovereignty in the state The power exerted by ihe 
general government are in virtue of the authority 
vested in it by the constitution, while the powers t x- 
crted by the state governm^nt5, are in virtue of the 
sovereign power in the people The interference o-f 
Congress can neither change the orij^inal compact of 
the Union, nor abridge the rig^hts of the people The 
moment a new state is admitted, the pe' pie advance to 
the enjoyment tfthe federal rights, and the geiieral 
government to the exercise of the federal powers, not 
ii consequence of any new compact, buf in virtue of 
the old compi ct in the constitution of the Uni ed 
St tes, to which the prople of the new state voluntari* 
fy submit und be«ome parties, when they are admiUe^^ 



Id 

mto the Union. The general g:overrment cannot al- 
ter this coiiSiitution, th y c. n o ly exercise tlu p? w- 
crs Cf'nft;rred by it. 1 he v cannot, thfr^.fore. clip^i\e 
the people of a ntw st te of ny fcder I right, v I ich, 
in relation to rh m, does not tx^st until their fcimis- 
sion into the Uni n — th f deral ri^-hts of tl..' people, 
and the pfweri «'f ConLr<-ss, spring ?ntn t^xisttnce to- 
gether. The p wers ofCongre'^s are V/holl;. indepen- 
defit of the nature or nrovisirrs (f ?he state crrstitu- 
tion, whatever that consti* ution rr<; y be; they have aa 
uncotMroled sway within their federal sphere. and| 
th rtfore, no new compact can b^- necessary to iheir 
operation. If, then, Conj^ress can exercise no f-de- 
Fal power until the state is admitted, and if upon that 
ad«r»ission they can neither abridge nor augment the 
federal rij.'his, by what authority can they i terfere 
with municipal rights which f rm no part of he con- 
stitution Dftht- United States, but reside in the people? 
It cinnot be reas. nably contended that the general go- 
verr ment can form a state constitution — if the\ can- 
Botform it in the whole, they •aim-^t form ir in part. 
H w ca 'hey mf-.k a constitution frrasiate, ♦^hen 
they could nnt make their own, and cannot alter it 
now that it hits been made by the people and states? 
If ihc general g- vernment caE conf«ir no municipal 
ri his, it is b. cause they neither possess any n or have 
th.. power lo control them, ar<d, ifth^y cannot enlarge, 
it is impossible th' • can abridgfe them 

Thfc powers ol the general government are purely 
federal, they are t^t'nhtrnational nor municipal: the 
riKh's of the people, in thrir state go^errmmts vire 
bo' h national and municipal. The jurisdiction of the 
fc deral i>:overn!? ent extends to the connections, i ter- 
course, and com'- erce of the republic with foreign 
states and oati.ns, and with each other as sovereign 
independent states. But th<j : dmit.istration of all 
their local coj cerns; the regulafon of heir donestic 
relations; th- riirhts of property, together with the 
whole routine of o-unicipal regulations btlcne to the 
states and the people. Judge Tucker, in his com- 
mentary upon the. constitution of the United Htates, 
adopts ths as the grand boundary, as marking the li- 
mits bttwecn the federal and state jurisdictions} to 



tkc former he allots, ^'jurisdiction in all cases arising 
Uii.ler ihe political laws of the confcdf racy, or such 
ai relate to its general concerns with foreign nati<»ns, 
or to the several stales as members of ^h conf dera- 
Cy; and, to the latter. »he cog- izance f all mat ers of 
a civil nature, or such as properly belong to '.he head 
of municipal law, txcept in one or twoinstanc- s v h ch, 
beiag in derogation of the mun cipal jurisdiction of 
the several states, ouj^h' to be strictly construed.'* 
1 vol. Tuck. Blac. \78. 

The only instances which now cccur to me ia 
■which ihe general government possess any nmnicipal 
power, are those to p.^ss laws < f bai Urup^cy and na- 
turalization, and the right <i securing to authors and 
inventors the use of their product! -ns. In all other 
cases in which the extrcise of the municipal powers 
of a state are abridged, it is by restricting their ope- 
ration, boih by the state and th'^ general goverr.mentj 
as irxompatible wuh some othir power vested in 'he 
Union. 1 never before heard it conte ded, that tlie 
general gover-meit could, in any manner, in i-jfLre 
with ih. local affairs of a statey or the rich s of pro- 
perty of the people. Their power to do so is denied 
by every commentator who has u'^dertaken to ex- 
pound the constitution la the 2d volume of the Fe- 
d'rralist, p 82, it is said. *'The posvers delegated by 
the pr p )S". d co siiittti u ( f ih--. I'ederal government, 
are few and defined. Those which ^ire to remain to 
th«:i state governments, are numerous and indefinite. 
The former will be exercised pri- cip^lly on external 
obj' cts; aswar, p^ace nego'ialion, and f reipn c 'FjI- 
merce; with which last the power r,f taxation wili, f-^r 
the most part, be connected. The powers reserved to 
the severa' states will ex end to all the objects "vh ch,, 
in the o'-din >ry coursr' of affairs, concerns *he iii't'Sf 
liberties, and properties of the people, and the internal 
order, improvement; and prosperity vi th.^ state." 
Judge Tucker, also, in anoih'tr part of his commen- 
tary, on that clause of theconsiitution reserving to the 
slates an i the p<.op'e all power not dtlegrtled, s-ys, 
♦'The Congress of th. United States possess no power 
to regulate, or interfere with the dume^tic concerns 
erjioiice of any states itbelongs not to ihem to csta« 



21 

Wish any rules respecting the rights of property.^ 
Tuck. Black, p. 315. 

If 'hen Congress possess no mutiicipal powers — no 
power to interfere in the local concerns of a state, or 
to establish rules respecting the rights of property, by 
what mode of reasoning can they acquire any such 
power gainst the consent of those froii; whom it is to 
be wrested, or in any manner if terfere with its ex- 
ercise by the legitimate authority? If Missouri were 
admitted as a state, no such power cruld be exercised 
by the general government; they are then attempting 
to force the people of a state to give them a power 
which the constitution of the United States denies 
to thi ml 

If then Congress can exercise no municipal power, 
the right to do so resides with the people; and when 
they come to form a constitution, they exert it in 
the manner most conducive to their happiness. Con- 
gress en do no more than authorize the people to 
exert the power which is thus inherent in them. 
There is a manifest distinctii n between the existence 
of a right, and the exercise of that right. The right 
may remain dormant for any length of tinr e, and t-o it 
does wiih the people of the Territory, until the per- 
mission of the general government is given; then it is, 
the right becomes active; but it is still the right of the 
people, and not of Congress. It is the sovereign 
power; which consists in the right to establish a pub- 
ic authority to order and direct the local affairs in re- 
lation to the end of the association. Ihis authority 
includes their executive, legislative, and judiciary, de- 
partments; the rights of life, liberty, and property; 
Vhe course in which property m:.y be transnnitted, the 
manner in which drbis may be recovered, th^ right of 
defining and punishing offences agairst society, and 
the establishment and regulation of all the dcmestic 
relations — husband and wite, parent and child, guar- 
dian and ward, master ard servant. Could Congress, 
in authorizing a people to form a constitution, cc.ntrol 
any of these regulations, or modify either of the 
above relations? Could we prescribe the term cf of- 
fice of the executive, or the mode cf selecting or ap- 
pointing the legislature or judiciary? Could we say 



^2 

that property should not descend to all the children -^ 
equally, oi not be deviseable by will? Could we define 
the ^' arital rights, or establish certain relation, be- 
tween parent an.i child, guardian and ward, or nnaster 
and servant? No one can pretend that we could; a?^d 
for the plain reason, that they are objects of municipal 
power, i>f which ws are eniirely destitute. 1 he re- 
lation of master and slave is but a domestic relation; 
involving the right of property, and every legdl con- 
sequ'^nce of such a relation. There are no rights 
growing out of the relation of master p.nd servant, that 
do not attach t • that of mascer and slave, excepting 
that »he master may have greater power, and the slave 
fewer rights; but the rights of the master are, never- 
theless, rights of property, and his obligations are, to 
to use the property in conformity wi'h the laws and 
municipal regulations of the state of which he is a 
member. It is a domestic relation in ever; state of 
the Union in which it exists, and the subject of their 
municipal power. I shall noc stop to enquire into the 
.moral nature of this relation, or the right of sovereign 
power to toler te it, thou5i;h I think it is ap. arent, 
that the power to hold a man in slavery is the hi.^hest 
exercise of sovereignty; it is sufficient for this argu- 
ment, that it was a subsisting relation in these states; 
that the constitution of the United States found it ex- 
isting, recognized it as the subject of property^ cog- 
nizable by the municipal jurisdiction of the state, and 
stipulated to guarantee both the property and the ju- 
risdiction. 

The Union itself is composed of states, and the 
Constitution formed by people, tolerating slavery, and 
holding their slaves as subjects of property; and it 
never could have been their design to establish an au- 
thority competent to subvert this property. The gene- 
ral government have rtcoirnizvd this relation as ihe 
subject of property, by accepting the transfer rf terri- 
tory from Norih Carolina, with n express «^tipul tion 
that Congress sho-oM ; ot even inhibit the tokrAri: n of 
slavtry within it, while it emcisicd un 'er a territoiial 
form of governnient. Tht^ constitution also rtcog- 
nizes !.he riglit of property in slaves, bv providing for 
their enumeration in the ratio of representation, atvM 



<6 O 



fey constituting them t"he objecf.s of taxation i a recur^ 
renc • to the 54th number of she Federalist will shew 
that this article was founded chi^fly on the idea that 
slaves were property. It is there said expressly that 
" slaves are considered as property."' It further recog- 
mzes property in the slave, ai^d also the authority of 
the municipal jurisdiction, in lea* ing the rcRuia ion 
of the Jitates in this respect undi£turbi-,d, under which 
they are bought and sold, for paymtnt of debts., as 
property, pass to executors and administrators is pro- 
per?;y, and its free enjcyj'ment protect- d in the samem n- 
ner as any other species . f prooert}. Eut, v.ir, the con- 
stitution nor only recog ized property in slaves hsld 
at the time of its adoption, but it i^uuranteed the right 
of the people of the United States to import them 
from abroad for the period of twenty years. It not 
only reirained from disturbinp- the property existing, 
or with its natural increase, bnt it encouraged an ac- 
cession to its numb rs ihrou!<li the most odious chm- 
nel. This very arnendment treats it as property, since 
it deems the exisii* g- slaves us sacred, arid speaks free- 
dom only lo their future progeny, i^o far ihe piovi- 
sions of the constitution are coofiued to the recogni- 
tion of property in slaves, both in enjoyment and ac- 
cumulation; but it does not stv.p here: it protects the 
enjoyment of the pf^opej ty against the encrcachment 
of municipal jurisdiction. This is clearly inferable 
from the second section of the fourth anicle, which 
auihorizts m abcconding slave to be reclaimed by his 
owner. This provision is a complete exposition of 
the whole spirit of the constitution. It admits the 
right in each state to make its own regulations upon 
this species of property: to tolerate or abolish. With- 
out this clause in the constitution, it W'oulo ha e been 
in the power of each state, to abolish slavery, and pre- 
vent the owner even of an absconding slave from claim- 
ing him as such. The probcibilily that such a policy 
would be ad pted in some of the states, su. gested the 
necessity of this provision, and it therefore became 
one of the objects of che constitution to protect this 
very species of property. All the pov>'er, therefore, 
in Congress over tne slaves legii" ately brought here, 
is a protecting power for the beciefit of the owner, 



24 

and a protecting power merely against the conflicting 
policy of state reguiations, of which it is the pec.'liar 
object But the instant it is admitted to be p»optriy, it 
becomes the subject of municipal authority only, and 
is invested with all the rights and dis?4bilities of pro- 
perty. It Would be very difficult to as-ign a reason 
why ^h' rights of the owner in this, mor thun i; any 
other species of property, could be affected Aud jet 
it is directly invaded by this anirndmeiit. 

It first propo-*es to set fee the issue of all th? slaved 
now in Missouri, in -he face of the treaty which stipu- 
lates h^t the mh vbiiaits shall be protected in 'he 
free enjoyment of th^^ir property; and it furiht r inter- 
feres with the cuizen ©f a-> ther state, in the use of 
the very prop-rty which rhe constitution permitted 
hi n to acquire, an^f stipu ated to project, or, at least, 
not to destroy. If his restriction be not imposed, the 
citizen of the south would be permitted to remove to 
Missouri, and take hts sbves with him, providefi the 
mun'cipal laws of that people did not prohibit him. 
But as the Congress cannot destroy this right by a di- 
rect law, they propose to do it by an indirect assump- 
tion of power, in which is involved, not merely an 
usurpation of the rights of the people of Missouri, but 
a violation of the guaranttre to the rest of the states! 

We have been referred, h>wever, to the declaration 
of independence, .^s declaratory of the principles of ihe 
constitution in Uiis respect. I should scarcely h.ve 
deemed this topic worthy of an answer, but for the 
confidence with wh ch it has beii reiterated in this 
debate. If the absuact principles, contained in ihis 
mtmorable paper, could possibly be supposed to have 
at.y i-effrence to the condition of ihe black popuktion 
in the UiMted States; yet as it preceded the adoption of 
the constitution, their practical effect mast depend al- 
together upon the positive provisions ofihat charter. 
But the trulh Is, si.= , that the decla ation of indepen- 
dence, had no reference to those persons who were, at 
that time, held in slavery It was pronounced by the 
freemen of the country, and :\ot b^ sliivts :No one 
preterded that they acquired any claim to freedom on 
this account; on the contrary, th revolution found 
them in a state of servitude, the acknowledgment of 



25 



our actual independence left them so, and the consti- 
tutionofihe United States perpetuattd the^r condition. 
The declaration of independence was the act ot open 
resistance on the part of the white freemen of the colo- 
nies, acainst the pretensions of the n.othttr country, 
to eovern them without thdr consent; to assert their 
unalienable right of self government, and to alter or 
abolish it whenever it should be necessary to cttect 
their safety and happiness It was the resistarcc ut 
freemen to the assumption of a power on -he part -t 
Great Britain, preciseU sinnilar to that wh>ch we are 
nowe.'deavaring to'impose upon the people if Missouri. 
It expressly asserts the prircipl^s that »^ all jtist pow- 
ers of government ^re derived from the consent cf he 
governed; and the right of the people to alter or 
abolish, nd institute it anew, as to them shall seem 
^most likely to effect thtrir safety and hAppi^ess.' 1 do 
rot deny that the principles cf ihc declaration of inde- 
pendence ar e those ol the constitution; on the contra- 
ry, I admit that they are those upon which all our insti- 
tutions repose; they ^re those upo:- which the people of 
Missouri claim the right, to make their own ccnsti u- 
tion, and resist the imposition of an? species of go- 
vernment, deriving its powers from any ether source. 
But I contend that it never designed to ussu e or as- 
sert anv principle whrtsoevcr. in regard to the slave 
population of the United States, and, therefore, that 
it ca-notbe used in this dcbatr, either as decl ratory 
of their rights, or explanatory .f h; principles of the 
constitution and govcr ment n th::if bfihalf. It is un- 
reasonable to assert the contrarv> when e*'ery one 
knows, {hat while thti freemen ^ f this country were 
openly resisting the usurpaions of the British Crown, 
they did not relax, in the sli h est degree, their hold 
upon the negro slave; and, to him, it v/as a .natter of 
entire uvconcern. who should 9;overn his masttr, as, 
in 11 conditiuns^ his master would coi)ti.»ue to govern 
him I do not advoca e the c insistency of all this; I 
take things as I find th m under our form of guvern- 
me-^.t, though when we throw our ere towards t. Do- 
mingo, and reflect upon the scene? which ensued he 
heedless enth'siasni whu.h charac c; 'z d the i're'ch 
rcYoluiioii, Wv cannot fail to admire the cautious wis- 
S 



26 

dom of our ancestors, in not hazarding the great object 
of their struggle, by suddenly letting loose their un- 
fortunate, though degraded slave populatien. Besides, 
sir, the principles of the declaration of independence 
would not be satisfied by merely loosening the shac- 
kles of the slaves; they would assert, not only the 
rights of a freeman, but an equality of those rights, ci- 
vil and political. And where is the sta^e in the Union, 
in which the emacipated negro has been admitted to 
theenjoyment of equal rights wih the white popula- 
tion! I know of none. In some, to be sure, iheir rights 
Tncy be greater than in others, but in none, I believe, 
are they upon an equality. In <he state which i have 
the honor, in part, to represent, it has been the settled 
uniform policy to preserve a marked and wide discrim- 
i. ation, and I am free to express a hope that the poli- 
cy will never be abandoned I am an enemy to slavery, 
but I should deprecate a policy assailing that discri- 
mination which reason ar-d nature have interposed be- 
tween the white and black population. I forbear to 
press this part of ihe subject, sir; it presents many 
darl; images, which it would be unbecoming in me here 
to express 

But, Mr. Chairman, the henors^ble mover of this re- 
solution has said thai we are not now ei. forcing the 
old compact of U ion; but are to make anew one, with 
a new state, and he derived this power from the clause 
authorizing Congress to admit new states, though he 
did not take the trou le to deal much, in detail, upon 
this point. 

I shall not deny that Congress have the power to 
make a contract, where the parties^ which it is to af- 
f ct, voluntarily enter into itj and where it is neces- 
sary in the ex rcise of the legitimate objects tf the 
government, but they cannot make a contract upon 
any subject beyord their delegated powers, nor can 
they m^ke a contract which varies the original com- 
pac f'f Union, the es-ence f which is an equality of 
rights among the states If, iherefo- e, Cont^ress pos- 
sess no municipal powers under the constitution, nor 
tie power to control them in the states, they can ac- 
quire none by any new contract; for this would be to 



2.7 

get more power than it was designed they should pos- 
sess. 

Sir, this argument of the honorable mover, is a de- 
cided exposition of the broad nature of ihe power, and 
the weakness of his cause. If this restriction can be 
imposed only bv cjntract, then it admits ihat the right 
is inherent in the people of Missouri, that we can only 
control it by contract with them; and, that if ihis con- 
tract is not acceded to by them, we have no power 
over it. By 'he contract they are solicited to svrren- 
der a ripht which they would be at liberty to exercise, 
if not restrained by 'he contract; a right wh ch we 
cannot exercise or int'^rt-ie with, under the constitu* 
tion, without the contract. It follows then, that under 
such a contract, if it were completed, the people would 
have fewer rights, or you more power, than the con- 
stitution confers. If such a doctrine could be tolerated, 
the general government would be omnipotent. Sir, 
the fallacy of the argument is yet more apparent. You 
do do not even propose, by this compact, to get the 
Fight of exercising a new power; for if the people of 
Missouri should agree to your terms, you could not 
take the power which you require them to surrender, 
since, by «he constitution, rou could not use it, any 
more than you could any other branch of their muni- 
cipai auvlioritv; it would amount then to a stipulation, 
that the state should not exercise the power which, if 
th=y were to surrender, you could not employ. It 
Would be not a crar.a, but an exlirxlion of power— a 
complete annihilation, never again to be resunoed. It 
is impossible, upon any known principle, that such a 
contract could be good, since it pr eposes to destroy an 
unalienable right in the people — a right to alter or abo^ 
lif^h rheir constitution of government. 

But again, sir: it is necessary, for the validity of any 
compact, that the parties should be both bh and wil- 
ling to contract. If it is not their voluntary act, it is 
not bindinti; it is an usurpation upon tht- unwilling 
party. Then here is a rit^ht in the people of i\liss0u- 
li to insert, or not, this provision in their constitution 
of state government; it is not incompatible with your 
powers, it depends wholly upot' their sovereign will 
and pleasure to put it in, or leave it out, and to modify 



.0 



it, in this respect, at any future day; you deVire, how- 
ever, to have iv in, and to guard against its revocation; 
jrou can only accomplish this by a contract, into which 
the people must voluntarily enter. But they refuse to 
make the contract; they say they are desirous to retain 
tiiis ri^ht; they will not give it up. What then be- 
comes of the idea of compact? Can you force them to 
agree to your terms? No; then what is your r<;medy^ 
In ordinary cases it would be to refuse to admit th6 
state, until the constitution should be conformed to 
your views; and even this would resemble, very muchi 
the exercise of force, by withh^'lding immuni les to 
whi' h, according to the policy of the government, they 
w uld have a strong claim; but then the provisions of 
their constitution would not be unalterable^ and you 
could not make them so. But what is your power oi* 
remedy when ihis discretion to admit, or reject, is 
taken away? Iknow of none, consistent with the ob- 
ligations of good faith. I have shewn you that you 
have £lready made cne contract with these people; I 
refer to the treaty, and the Acts of Congress under it; 
and that, by the terms of this contract, you have bound 
yourselves to admit them into the Union with rights 
equal to those retained be the people of the other 
•^^'^^es. Is not that compact as solemn as any that 

****** - ■•.-CiCll'lit* 

could now be made? 1 hese per^pi? nt*>c iu»u.>CC tttcirr 
part of the contract, you hive enjoyed all the rights 
and advantages secured ^o you under it, and they come 
now and demand the performance of your part. What 
is the language you employ? You say, it is true we 
hav made this contract with you, but it turns out to 
be, in the view of a part of the country, a hard bar- 
gain; it secures to |OU more righ's, and Hows us less 
discretion, than we are willing to submit to, and unless 
you will nrw consent t; change its terms, and enter 
into 8. new c mpact, by which you arc to have fewer 
rights than the citize^.s of any other state, we will vi- 
olate our faith 1 We have agreed to admit you s a 
state, but, unless you consent to be less th n a state, 
wc will do nothing! We will have nothing to say to 
you unless you will now bind yourselves and your pos' 
icrity. by an irrevocable ordinance, to let us make your 
constitution in abridgment of your own rights; which 



2^ - 

shall be unalterable in all future times? Sir, as between 
individuals, such a case wouM require only to be stat- 
ed, to expose hi fallacy and injustice; and I can ac- 
kuowledge no difft rent principles between states, more 
especially, where your want of kOo<1 i^Axh infuses the 
spirit of jealousy into the minds of ycur citizens, and 
weakens the ereat rock of c->rfidei ce in your justice^ 
upon which the power of this UaiuR reposesl 

But the ordinance of ttighty seven hus been referred 
to, and confidei^tly relied upon, by the honorable gen- 
titman from Pennsylvania (Mr. Hemphill) -^s illustra- 
tive of his idea of compact, and the powers of Con- 
f;ress in this respect. The cases re entirely dissi- 
milar. I shall not detain you, Mr. Chairman, with a 
repetition of the arguments so often urged, with great 
ability and with much success, against the legality of 
this ordinance; I shall content myself with^'shewing 
its inapplicability, in fact or prmciple, to the csise now 
under our consideration. We have now nothing to do 
either with the principles of that ordinance or the au- 
thority by which it was estabhshed -he people of 
Missouri do nut claim to be admitted cc rdmg to the 
principles of either; but they demand admis-sion ac- 
cording to the terras of the treaty and the principles 
of the present constitution 

This ordinance was the act of the old confederation; 
and whatever power they may have had to acquire the 
ceded territory, it is admitfe<!. on all hands, that ihey 
possessed no authority to establish a territorial form 
ot government, or to admit new states, without the 
consent of nine of the states composing the old con- 
federacy. The territory north wcst of the river Ohia 
to which the ordinance was applied, was ceded by 
Virginia; it was, at the time of its cession, uninhabit- 
ed, excepting by a few French and Canadian setUtrs, 
who held staves; after its acquisition by the old con- 
federacy, it was discovered that they had no power to 
govern it, without the consent of the state by whom 
it was crded; they therefore franked the ordinance of 
'87, providing for its erection into states, and for the 
prohibition of involuntary servitude. This ordinance 
was to be in the nature of a contpact, brtween the 
states ceding it, the United States, and the people el 



the terrUories; it became necessary, therefore, to ©b- 
tain the consent of the state of Virginia to the ordi- 
nance, which she gave, by her act passed the 30th of 
December, 1788; and in this manner the ordinance 
of '87 may be considered as forming the terms of the 
cession by Che state of Virginia. The French and 
Canadian inhabitants there, at the time of the cession, 
were not affected by the ordinance: they continued to 
hold their slaves, the issue of which are held by their 
posterity to the present day This ordinance was 
considered doubtful, until the adoption of the present 
constitution, by the first clause of the sixth article of 
which it was supposed to be confirmed. But this con- 
lirmauon shows it to be in the nature of a compact, 
and not of a law; a compact voluntarily entered into 
by all the parties connected with it — not incorporated 
in the present constitution as a grant of power, cr ex- 
planatory of its principles; but merely sanctioned by 
a single clause, providing for the validity of contracts, 
H It was a contract made by the party ceding the terri- 
i tory; it did not propose to affect the rights of persons 
residing there; it was to operate as a contract upon 
those who should subsequently remove thither: such 
persons, therefore, went under this ordinance ; they 
voluntarily became parties to it; and such only settled 
there as were willing to live without slaves, and subject 
to the terms of the compact. In this manner the 
country became settled by a non-slave holding popula- 
tion; and when they came to make their constitution 
and state governments they voluntarily framed them 
according to their own feelings and habits. Beyond 
this, I deny that there was any binding force in this 
ordinance. It was not competent for it to take away 
the right of altering the constitutions, though it is a 
right existing in theory merely, as the Interests of the 
people will no doubt always prevent any alteration in this 
respect, If the same policy had been pursued by 
Congress, in respect to the territory of Louisiana, 
from the date of its acquisition, a similar effect would 
have been produced, and all the unpleasant convulsions, 
to which the present attempt to usurp power is likely 
to give rise, would have been prevented. 
So far, then, as this famous ordinance is good for 



31 

a\iy thing, it is good only in the nature of a contract; 
it is so treated by every gentlemyn vvho has r oticed it 
in debate; and a conti act made before tht present c<m- 
stitution, and applic ble to a particular urriiory, by 
the consent of the power ceding it It has, th-n, 
clearly pertbrmed its office; i . is functus cfficio; it ap- 
plies to no other territory either in fact or principle. 
It does not follow that, because the old ct nfederaiion 
concluded a contract, which the people of the United 
States snbsequenllyconfirmedjthat therefore the present 
Congress can make a similar contract, enlarging their 
own powers, without the same sanction of tht people of 
the United States, who have yet delegated no such au- 
thority. / 

But here the people of Missouri have a coRti5act 
also, though it is one of a very different nature t^ian 
that of the ordinance of *87. Tlieir contract stipu- 
lates for their admission to the enjoyment of eqoal 
rights, rmmunities, and advantages, of cifizens of the 
United States, and the restriction proposed can only be 
enforced by compact, independent of the constitution. 
We say to them that, unless they will agree to tack the 
ordinar ce of '87 to the Treaty, whose provisions will 
thereby be entirely varied, we will violate its terms, or 
disrt^gard them. What would have been said, if we 
had insisted upon similar cor.cessions by the stales 
formed out of the territory ceded by North Carolina, 
which were alss admitted according to the terms of 
the contract of cession ? We have as little right to 
insist upon them in regard to the people of Missouri 
as we had to dictate them to those states. It is in both 
cases a violation of good faith Under this treaty we 
accepted a territory in which slavery existed, & rights of 
property reco.j:nized by the government ceding it. We 
stipulated to protect the enjoyment of that property. We 
have encouraged emigration of the free citizens of the 
United States thiiht r by our whole course of policy. 
We have in no instance attempted to interdict ih« 
transportation of slaves there, excepting; by a law 
which lived but a year and was then repealed: this law 
prevented their introduction there for sale merely; it 
permitted, and thereby encouraged, their intrcduction 
by persons removing into the territory to settle. In 



22 

this way, under our own auspices, this species of pro- 
perty has been acquired, and we n w attempt, in ihe 
fac of our own «ci.s, and in defiance of the treaty, not 
only to force the people of Misso iri to give up (heir 
right to form their constitution, vi regard to th. future 
introduction of slaves by persons goint* tht re to iive; 
but also to annihila'e all the rights already acquired: we 
f rce them to do what we never thought it prudent 
ourselves to attempt, even when we ha J the po*ver! 

No little reliance has also b.-^en placed, b> th^^ hono- 
rable T.o?er, upC'U the claustt in the constitution, vest- 
ing in Coigre^s a power to disp >se of and make U 
needful rules an i regulations respecting the territory 
or other property belongi i^ to the United States. 

I do not pr^»pose to enter, minutely, into thf^ inquiry, 
whether the power of Congress to establish a territo- 
rial government is derived from this clause. I incline 
to the opinion t^na;. ii is not. The p Wcr, h- re outer- 
red, is a power to d sp.>s.'? of and mdke n^^edful rules 
respite' in9:*he property of the United States. It was 
de-igned, I think, to authorize the sale of the lai»d for 
purposes of revenue, and ill regulations which might 
be deemed necessavy for its proper disposition; or to 
convert it to otner public objects disconnected with 
sale or revenue; to retain this power, even after the 
territory had assumed a stale government, and perhaps 
to divest from the state government the right of taxing 
it, as it •vQuld do the property of individuals. It is 
silent as to the people, and their slaves are thcproperty 
of their owners, and nut of the government. The 
right to govern a territory is clearly incident to the 
right of acquiring v It would be absurd to say that 
any ;^overnment might purc^-asc a territory with a po- 
pulation, and not ha'/e the power to give them laws; 
but, from whatever source tht power is derivable, I 
admit it to be plenary, so long as it remains in a condi- 
tion of territorial dependence, but no longer. I am 
willing, at any time, to exercise this power. I regret 
that it has not been done sooner. But, though Con- 
gress can give laws to a territory, it cannot prescribe 
them to a state. The condition of the people of a terri- 
tory is to be governed by others; of a state to govern 
thems^ves. This ia the great favor we permit thejn 






to enjoy when we exalt them to the character of a stati^^ 
The instant we authorize them to form their constitu- 
^on, the territorial disabUitiea, and the powers ofCon- 
gress over them^ crumble together in the do&t. A 
Bf w being, and a new relation spring up — the st . te 
authority, derived from the just powers ol the people, 
takes its place; evtry feature of the territorial authori- 
ty become rffaccd. and the federal powers of Congress, 
encircling a state, commence their operation, if here 
is nothing of territorial disability on the one hand, er 
territorial authority on the other, which passes into 
the new order of things; if they did, the state would 
be incomplete. 

But, Mr. Chairman, the honorable mover also relied 
very confidently on the ninth section of the first 
article of the constitution, which provides that *' the 
migration orimportrtionof such persons, as any of the 
states now existing shall think proper to ad^^it, shall 
not be prohibited by ConQ;ress prior to the year 1808, 
but a tax or doty may be imposed on *uch importa- 
tion, not exceeiiing ten dollars for each person," It is 
said that this clause invests Congress with the power 
of prohibiting the removal of slaves from one state of 
the Union to another; but if it had not been for the se- 
riobsness and sincerity with which it has been pressed 
r> *"w 1^2*^*^^^*^^^ M:entleman from Penn. (Mr. Hemp- 
/iiill) I should have deemed it wortny oi our a very lew 
remarks. It now deserves a close examination * 

It is apparent, and indeed is admitted by all, that 
this clause contains no grant of power, but restricts for 
a limited period the exercise of an existmg power. 
And also that the power, whatever it may be, is now 
the same over (he old as the new states. Unless, there- 
fore, Congress possess the power, by some other pro- 
vision in the consiitution, to inhibit the removal of 
slaves from one state into another; this clause cannot 
refer to that description of persons, or to that mode of 
removal. Conceding, for the sake of argument, the 
full infjport of this clause, I cannot conceive of any 

* Since this speech was delivered, the hon. Rufus King, in 
the Senate, frankly disavowed this source of power, as au- 
thorizing the restrictiorj. It has since been given up by al- 
ino#t cvefy gentleman who has advocated the restriction. 



34 

thin? more destitute of weight in this matter. For 
suppose Congress to possess the power to prohibit the 
•arrying of slaves from one state into another, it is a 
power merely of K gisiation, for they have no other 
than legislative powers. They would be obliged to 
cxr'ci«'e it by a Iaw, and could do so, as well 
after the state should be admitted, as before. The 
power in Congress to legislate upon this subject, con- 
fers no authority to compel the people of Missouri te 
put the provision into their constitution; bvit should be 
exercised whe-ever circumstances required it, with- 
out r-rftrence to the acts of the stale. Besides, no le- 
gislative act of this descripiion, could be, in its nature, 
irrevocable; but here is an expedient to convert a 
power of legislating in the ordit>ary way, into a consti- 
tution making power, with the dangerous novelty of 
making it unalterable! The very attempt to compel 
the surrender of their rights, in this respect, from 
the people of Missouri, is in itself conclusive, that gen- 
tlemen who rely upon this clause, are themselves 
aware, that eve|i the legislative power does not exist. 
Nor does it exist sir. 

The honorable gentleman from Pennsylvania, Mro 
Hemphill, admits that he reu?t find the power in some 
other part of the constitution, and he says it is con- 
tained iii the clause authuriain^ C?"oVC:' '• to regu- 
late commerce among the several states.'* He sup- 
poses the authority to prevent the importation of 
slaves from abroad is derived from the power to re- 
gulate commerce with foreign nations;*' and that, 
therefore, the authority to prevent the ^'migration of 
them from one state to another, is derived from the 
similar power in relation to the intf rnal commerce. 
But the gentleman must not o'l\ be correct in this 
position, but he munt additionally shew, that the word 
"migration", applies to slaves at all, and also to their 
removal from slate to state, to sustain his argumont. 
He is correct in neither. The power to prohibit the 
"importatioo** of slaves from foreign countries, is not 
derived from the clause to regulate commerce with fo- 
reic^n -nations. If it were, the p'ohibition Cduld only 
be made where the slaves were broujcht into the Unit- 
ed States, in the way of commerce; it would confer n* 



35 

power to prevent a Canadian, or inhabitant of Flori- 
da, from nnoving over the line with his fannily and 
settlinp: on a farm, for agricultural purposes nicrely. 
I derive the authority frorn a ir.uch more ex ensivc 
source, from the general unlimited power in ih- f de- 
ral i^overnmei t tore^iulate all our concerns aidiniei'* 
ccupse whatsoever with foreign natiot s, 8c piotibi^ the 
connTmi^ in as well of freemen as slaves f';r any pu ■ pose 
or in any manner, whenever the ptblic tx'gtnctso? »he 
country render itadviseable. But, thovpfh the nght of 
prohibiting; the importation cf slaves f.f.m abroad, 
should be inferred from the power to regulate com- 
merce with torei:c',n nations, it does not follow that the 
right to prevent their removal from state to state, 
would be derived from the power to regulate com- 
merce '^among the several states.'* The phraseology 
of this clause is different — the regulaiior is to be 
*'amor)g the several states. '* Congress have no r^iht 
to make ay regulation which applies o»ily to one or 
two states; it must be general among the whole; all 
must share the adTanta^es or disadvantac.es cf the re- 
gulation, whatever they may be. Partial rtgulatir.ns 
cf commerce was precisely the evil which the power 
vested in the Congress was intended to guard against. 
It was easily foreseer, if the commercial intercourse 
between slate and state, were left to the state authori- 
ties, (hat, by means of local regul'tions, or improper 
contributions levied on the transportation of merchan- 
dize through its territory, any one state might mate- 
rially interfere with the legitimate comnfterce of an- 
other; these would naturally lead to counteracting 
measures by the other state, and, m this manner, ccm- 
binatii ns and collisions, ruinous 'o the interests cf all, 
would follow. The prevention cf these evils was the 
principal object of giving the power to the general go- 
vernment.* It is a power in a coo mon government, 
for a common benefit; arid the same regulation mus 
be applied to all the stales equally. It was intended 
to secure to the citizens of every state the right of carry 
rng their merchand'ze when and wheresoever their in- 
terests dictated, without interruption from the conflict- 

* See the 42d number of the Federalist. 



ing views oFany other state; it could never have been 
the desipjn to prohibit entirely the carrying of mer- 
chandize from one state, or from any of ihe states, in- 
to one particular state. Buch an idea is at unce re- 
pealed by the fifh paragraph of the rinih section of 
the first article; which provides, that *'n;) preference 
shall be given, by any regulation of commerce or reve- 
nue, to the ports of one state over those of another." 
As connected with this part of the subject, it is \o be 
remembered, that the power is, to " regulate com- 
merce," not to abolish or prohibit it altogether. I 
will not deny, that Congress may, when any public oc- 
casion requires it, suspend the commercial mtetcourse 
*among the several states " for a limited time; but I 
do insist, tha» any law which should prohibit it forever 
would be unconstitutional. Will any gentlemen con- 
tend, that Congress have powtr to say that the state 
of Georgia should never hereafter send rice, which is 
clearly an article of comm roe, into the state of Mis- 
souri, or compel the people of the lat er state to a^reei 
by an irrevocable ordinance, never to admit the arti- 
cle of rice to be received into her state from any other 
part of the Union? And if the power to prohibit the 
removal of slaves depends upon the right to repfulate 
commerce, it must be because they are arti'^les of 
commerce; and, therefore, like every other article of 
a commercial nature. Again, sir, the power to re- 
gulate commerce, must apply only to an intercourse 
purely commercial, and to articles used and transport- 
ed in the way of commerce. All articles of househsld 
furniture, and implements of agriculture, may be used 
in the way of commerce, they are so when they are 
bought and so'd, or carried about for sale, but they 
cannot be so considered when they are carried by their 
prrprietor for his own use, when he pleases to remove 
from one state into another; such a removal would 
form no part of the commerce a v,ong the states Nor 
will it, I apprehend, be pretended, that the general go- 
vernment could, in such a case, prevent the removal; 
because the constitution secures hii) equ^l privileges 
in every state; and they would have »s little power to 
prevent him from taking his proper».y with him, un- 
der the pretence of regulating 'commerce among the 



several states." The right of removing necessarily 
Inclades the right of carrying one's family and property 
fviih him. Sir, the slave is in no greater degree an ar- 
ticle of commerce, when his owner, in his transit 
from one state into another, for agricultural purpose^ 
takes him, as a part of his properly, to assist in work-' 
ing his land, than any other member of his family, or 
any other article of his property. He does not carry 
him as an article of commerce; there is no buying or 
selling in the case. This amendn.ent however applies 
to this as well as the instances of transportation for 
purposes of sale. But, sir, the honorable gentleman 
from Pennsylvania, is obliged to admit, that the term 
* importation** cannot apply lo intercourse between the 
states; since a tax or duty ra ly be imposed on sucfe 
importation, and the constitution expressly provides, 
that '* no tax or duly shall belaid on articles exported 
from any state." Now, sir, importation cnay be by 
la d as well as by water; and you could not, at any pe- 
riod, eithtr before or af er the year 1808, impose any 
tax upon the exportation from a state: the gentleman's 
arerument thtn involves him m this inconsistency that 
though Congress cannot, at anytime, impose any duty 
on ariiclts exported from any state, they may prevent 
their exportation altogether; or that, though you h ve 
the p; wer to preverit the transportadon cf slaves, from 
state to state by land, you h -ve no power whatsoever 
over them if carried by water; or, that, though impor- 
tation and migration both be means of carrying or 
commerce, yet. under the general power to regulate 
that c mmerce, you may abolish one but nut the other! 
Au>ain, Sir, it has never been denied, that the power in 
Congress to regulate corK,merce is an exclusive p'W- 
er— the states ca not exercise it; and, therefore, if the 
right to prevent the removal of slavf s, from one state 
to another, is a part of this power, it must of course 
be exclusive. And yet, sir, we see that all the states 
havh cons'^antly made Ihtrir own r- gulafions upon this 
subjtc*:. I have Iready s>hewn you, that the consii- 
tuti^n jf the Ui'ited States expressly recognizes their 
right to do so; iuir uniform practice has given a con- 
tempor neous construction to the instrument, by tx- 
■ercising the power ever iince its adoption; and if 9! 
4 



as 

contrary doctrine should now prevail, all those shves 
who have been hitherto declared fi ee, by reason uf a 
viohtion of any state regulation, are yet slaves, and 
may be reclaimtd by their ownersl But it is impos- 
sible that such a doctrine can ever prevail. 

It appears to me, then, Mr. Chairman, that the right 
contended for cannot be derived from the power to 
regulate commerce among the several st tes; and 
therefore that the power, which was restrained until 
the year 1808, was that of preventing the migration or 
importation of persons from foreign countries only» 
It would be very immaterial, ir- the present argument, 
whether the word j^ersows related to slaves only, or 
to freemen as well as slaves; I believe, however, it re- 
lates to both. 

In a just interpretation of this clause, we are bound 
to assign to each word a distinct meaning, to suppose 
that each had a definite object, and that neither was us- 
ed unnecessarily. If both ♦* migration*' and " importa- 
tion*' be applied to slaves, one would be wholly 
useless. The word " importation" would embrace 
every possible means by which slaves could be intro- 
duced into the country against their will, as it would 
every means by which they could be removed from 
one state into another. We see, moreover, that, up- 
on the importation only, the imposition of a tax or du- 
ty is authorised, and, if slaves can migrate at all, they 
do so as well when coming hither from a foreign coun- 
try, as in going from state to state, and it is therefore 
unreasonable to suppose that while it was the evident 
policy and intention to prevent their coming in at all, 
the " importation" only would be obstructed, and their 
" migration" left free and unrestricted. 

But, sir, the word ** migration'* cannot apply to the 
forcible or involuntary removal of a slave from any 
state, foreign or domestic. It is the voluntary act of 
a free agent; and a slave has no such wilU and is no 
such agent; he is subject to the will of a master, by 
whom all his actions are controlled. It is, moreover, 
a rights so defined by all the best writers on the sub- 
ject; it is the right of quitting one's country, and of 
going into another in the pursuit of wealth and hap- 
pinessy and> according to the principles of our repubU- 



S9 

can form of government, it is unalienable. But, will 
it be pretended that the slave has any such right, 
when we have seen that, in the only instance in which he 
volMntarily leaves his master's service, he is compelled, 
in defiance of ail the municipal regulations of other 
statts,to be reclaimed? No, sir, he has no such right, he 
never changes his resideRce, but under the compulsion 
of a power he dare not resist. It is no exercise of a 
right, when the unhappy slave is taken by his owner 
from place to place — he obeys a hard fate which he 
cannot control, and he can, with no more propriety, 
be said to migrate, than the exile who is driven fromt 
his family and home, into in voluntary banishment. 

The term" migration,*' as here used, is also a gene- 
ral one, and has relation to the government by which 
it is to be controlled. Its true meaning, is th^ of quit- 
ting their own country, and of removing biyond the 
jurisdiction of the government: its nfeaning^Ss precise 
and technical. Therefore, though a man may change 
his residence, so long as he remains under the govern- 
ment of ihe United StateSj he does not migrate, in the 
sense of the constitution. When a man removes from 
one county to another of the same state, he cannot be 
said to have migrated in relation to that state, nor can 
he be said to migrate in relation to the United States, 
when he removes from one state to another in the 
Union. He is still in the same country, still under the 
same jurisdiction and laws, enjoying equal rights, and 
liable to the same obligations; he is still a citizen, nay 
an inhabitant of the United Slates, and the protecting 
arm of the constitution shields and conducts him 
wherever he goes; he is not an emigrant, until he has 
turned his back upon his country, and quitted its juris- 
diction. 

But, Mr. Chairman, if the words, as used, be in any 
degree ambiguous, we are bound to consider the cir- 
cumstances under which the constitution was adopted, 
and the object which was to be effected by the restrictive 
clause. It is clear that the general government pos- 
sessed the power, under the constitution, to restrict the 
" importation" of slaves from abroad, either as inci- 
dent to their general powers, or to the particular pow- 
er to regulate commerce with foreign nations* It is? 



40 

in my opinion, equally clear, that they also possessed 
the power of prohibiting the mip:ration of foreign free- 
men, under particular circumstances. It has been al- 
ready shewn that all our intercourse with foreign na- 
tions is peculiarly under the control of the general go- 
ve^ment, to which the right of rcgulatincr or prevent- 
lng»foreign emigration is necessarily incident; if it 
were otherwise, any single state, by opening its ports 
to foreign emigration, might let in a population to any 
ex^ent, and against the evident policy and interests of 
all the others. At the adoption of the constitution, 
however, the states being in their infancy, it was their 
policy to encourage emigration from abroad, and, as 
its interruption had bee^one of the causes of complaint 
against the^British government, it was natural that the 
powers of the federal government should be placed 
under some restraint in this respect. The year 1808, 
was, I imagine, agreed upon, in consequence of the 
compromise upon the other point. A consideration of 
the object of the compromise will leave no room for 
doubt. It related to the increase of population, either 
of freemen or slaves, from abroad. The constitutioii 
had provided, that three-fifths of the slave population 
should be enumerated in the ratio cf representation, 
which would have been constantly augmenting, by the 
importation from abroad, beyond the natural increase 
of this species of population, and it became, therefore, 
a matter of compromise, upon the mere poini of time, 
for which the importation should be tolerated. But 
this concession could not have been made without a 
similar license to the emigration of free persona in fa- 
vor of the northern and non-slave holding states, and 
thus the affair was adjusted by allowing the same pe- 
riod to each. The essence of this compromise being 
entirely an affair of time, leaves no doubt as to its 
meaning. It was to prevent the premature ascendan- 
cy in the south, by an undue increase of this popula- 
tion, an object which would have been as effectually 
promoted by the dispersion of the slaves among the 
other states, as by inhib ting their introduction from 
abroad, for, in case of their diffusion, the north would 
acquire their share of the numbers, and so the repre- 
sentation would be equalized. 



41 

*■ 
That this clause had ro sort of reference io a powey 
to prever;t the removal of slaves f» cm siate to sta'e is 
fur;htr tivident, fmrn the importarit corsideration that, 
previous to the adoptio of the constiiution, each state 
its< if possessed the undoubted authority to pr* hibiithe 
bring ng in of slaves irom any ether state. It is, there- 
fore extremely imprcbable that, with ail the jealousy 
and hos'ility of the northern stales upon this subject, 
they should have called in the aid of the general go- 
vernment to accomplish what they could do without it, 
and thus weaken their own powen by confiding it to 
councils who hau an interest in encouraging what they 
desirtd to abolish. It is inDpossible, sir, to resist this 
construction, when, in aid of it, are arrayed the acts 
and practice of all the states, from the establishment 
of the general government up to the present day. Sir, 
it is a power which can be safely exetted only by the 
individual states themselves; they never did. and never 
ought, to surrender it; they nevtr will, and never 
ought, to submit to its exercise by the general go- 
vernment. 

JNIr. Chairman, having consumed so much of the 
time of the committee in the constitutional question, I 
have not the power, if I possessed the inclination, to 
enter into a consideration of the expediency of this 
amendment. It is sufficient for me to know, that 
the constitution forbids me to adopt it, though I am 
free to acknowledge that the establishment of a prece- 
dent for interfering^ in the formation cf state constitu- 
tions is of a veiy dangerous character. But, surely, 
sir, our rii^ht ought to be very clear before we pursue 
it in a case like the present. It involves consequences 
cf too serious a nature to be hazarded upon a doubtful 
power. It is worse than an attempt to legislate in a 
case in which your power was ambiguous, and in which 
your authority could be examined, and sustained, or 
overruled by the judicial tribunals of the nation, 
which are the common arbiters of us all. It forces 
an odious measure upon an unwilling people, in a form 
which leaves them no redress in any pacific course. 
If they do not tamely submit to the restriction, you 
must either ignominiously abandon, or impose it by 
force I Impose it, sir ?— No \ But make the hazardous^ 



42 

attempt to enforce its imposition ! I will not enume- 
rate the eff<^cts of such a conflict: I pray Heaven it 
may never happen, but I will say, that, in my opinion, 
the object is not worth the conflict. 

Sir, I invite gentlemen to look at the present state of 
the public cou'^cils, and consider whether they do not 
hazard their whole object by persisting in a measure 
so repugnant to the ardent feelings of at least one 
moiety of this empire, and so much opposed to the 
constitutional views of many of the friends of the 
avowed policy. It is a consideration to which a states- 
man is bound to look: if actuated by motives of huma- 
nity and the public peace, he would be criminal to dis- 
regard it. We see it ascertained beyond doubt that 
the Senate will not consent to this restric!i©n, and 
that, if we persist in it, they will not unite even in any 
territorial regulation. The introduction of slaves in- 
to the western country will remain free. Those who 
desire to send this property there for sale will be sti- 
mulated to do so without delay; the market there will 
rise in apprehension of the future acts of I'ongress: 
dealers and settlers will take advantage of it; and thus 
slavery will become too deeply rooted to yield to any 
means of extirpation which future councils may em- 
ploy. In the mean time, too, public excitement in- 
creases; evil men seize upon the occasion to promote 
their designs; local prejudices spring up; and a spirit 
ol jealousy and discord is roused in all parts cf the 
country, which they who engender will be wholly un- 
able to allay or direct. But if, consulting the present 
state of things, gentlemen will yield something to a 
spirit of harmony and mutual interests, we may now 
put this unpleasant subject to ileep forever. The 
people of Missouri will enter the Union with their 
rights unimpaired, and their feelings undisturbed, dc- 
▼oted to your institutions, and inspired with full con- 
fidence in your justice and generosity; the territorial 
soil will then be unpolluted with slavery. Its intro- 
duction in regard to that being prohibited, much the 
largest portion of the western world will be peopled by 
a population unfriendly to slavery, and when they come 
to frame their state constitutions, preparatory to their 
future admission into the Union, they will volunturilj 



49 

form them in conformity wi^h their habits and prin- 
ciples; for I desire to be understood as denying the 
authority of Con.Tess to make any regulation for a 
territory, wh ch can be binding upon tht people against 
their consent, when they come to make their coKsiitu- 
tion, and after their admission into the Union. I sanc- 
tify no irrevocable ordinances. But their territorial 
regulations will accomplish the object by creating a 
population whose interests it will be voluntarily to 
adopt the restriction In this wav, too Missouri will 
be seated in the mids of rion slave-holding states, and 
the force of public sentiment will soon lead to the 
emancipation of her present slave population. For 
the accomplishment of all these objf^cts, gertlemen 
are called upon merely to abs ain from the assumption 
of a doubtful power over a resisting peoplel 

Mr. Chairman, the union of these states is the pro- 
duction ot the sp rit of harmoi y and compromise. 
Di/ we remember hew much our fathers surrendered 
to compose, and shall we refuse t ' surrender any thing 
to preserve it ? It was founded in common confidence, 
and for common benefits; it must be cherished by a 
common affection and forbearance, or it will scarcely 
survive the hands which planted it. The founders of 
this Union had their own advantage and the welfare 
•f their children to recommend its adoption; we have 
our interests, the welfare of our posterity, and the 
duty we owe to those who transmitted it to us, to perpe« 
tuate its blessi.gs. Shall it be said,thHt we will not sa- 
crifice one prejudice on the altar of the Union, for its 
preservation, whes they offered up thousat ds to rear it? 
Theg not only tolerated the existing slavery, but, in 
the spirit of mutual compromise, consented to its 
augmentation from abroad for twenty years! We arc 
only required to leave undisturbed that which they en- 
tailed upon us: nay, sir, we are merely required to ab- 
stain from cncrot'ching upon the rights of the people, 
ind,in doing s<i, multiply the chances of emancipation, 
and meliorate the condition of the slave ! 

Sir, ii the cause of this restriction upon the people 
of Missouri is deaf to all theiie considerations, and 
stubbornly sacrifices all, rather than yield a pa t, 1 pro- 
nounce it an unholy and an unprofit ble cause. It 
carries no peace to the bosom of the enslaved African 



<y>. 



44 

t^ow on your shores; it neither casts off his fetters, nor 
iii^htens his burthen. Pass this restriction, and his 
chains are rivetted as ti^ht as ever; his doom is fixed 
as irrevocably, nay, more so thar before. It may 
serve, however, Mr. Chairman, to foment political ca- 
bals, and promote the unhallowed views of the ambi- 
tious and designing. I do not say that such v/as its ob- 
ject in its origin; I am sure it was not; and i do not be- 
lieve there is any gentleman on this floor who could be 
the tool in such an intrigue. But m- y there not be 
men out of this House, who would avail themselves of 
such a state of public excitement, to accomplish the 
possession of power? Sir, may there not bs men out of 
this House, who are now adding to the impetus which 
this subject has received for such a purpose ? Gentle- 
men will remember, that the objects of an ambitious 
man are gcner lly more than half accomplished, before 
he is willing to avow them. I will not say that there 
are such, but I will saf, if there are, they are unworthy 
of ar y public trust in this nation. Nor, sir will they 
have much reason tu rejoice in their triumph, ^ should 
they be successful. No political power can be perma- 
nent, in this country, wai h shall be f unded o^ocal 
jealousy, and g -ographical distinctions. Public ho- 
nors, to be durable, must be won by public services, 
and distinguished merit; they must be sought through 
the aHeoiionate confidence of a virtuous and intelligent 
community; they must be the offspring of public gra- 
titude for pi-blic worth. Power acquired m any other 
way, will not be worth possessing: he who acquires it 
t)V these divisions and distinctions, will not lie upon a 
bed of roses; his honors w 11 be worn b) a fretful, if not 
a criminal b- '>w, and, in the midst of a discontent- 
ed and distracted empire. He will come to the coun- 
cils of a peojile disordered by intestine feuds, with feel- 
ings embittered by the recollection of domestic strife: 
his triumph would be as evanescent ^a uncomfortiible, 
I repeat it, sir, thU it will be well for gentlemen to 
consider whether h-^re are not mt-n who wili not t-ke 
adva-'tave of 'he present agi«ation, tu erge der all this 
mischief. Sir, if there should be one such it is our 
duty to d^feat his machinations; he is unvvor'hy our 
conhdence; sir, he sets a cormorant in the tree of life, 

*« devising death 

To them who live." ——. 



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